What Do We Need – Policeman, Judge or Jury

Sandra Lee, Alliance Member of Parliament & Leader, Mana Motuhake

Mihimihi

Thank you
very much for inviting the Alliance here today to give our response to this
important question. Moana Jackson over there and I were asked a similar question
on constitutional reform in the Beehive in an interview by Ian Fraser on Monday
night. We only had two minutes then so I suppose five minutes is better than
two, although on important matters such as these we need many years and this is
an evolutionary debate that will occur not just in foras such as this. The
question is where indigenous governance fails to be accountable who should
intervene? My response is that in the last 159 years we actually haven’t had
indigenous government in the true form. So, while we could litigate here today
the relationship of hapu to iwi, urban to iwi authority the merits or otherwise
of trust boards and so on, I don’t think that is the primary question, the
primary question surely must be how do we get indigenous governance in the first
place?The response is invariably
we need constitutional reform, and we do. Constitutional reform and
constitutional re adjustment in this country is the only thing that will ensure
that the compact in the contract that is the Treaty of Waitangi is actually
finally upheld and the enshrinement and commitment to our tino rangitiratanga is
part of that.

In relation
to that as a Maori member of parliament I want to raise some issues and
perceptions in relation to the Treaty of Waitangi itself. There is in 1999 at
least in the house of representative but I think also beyond it, a perception
that the Treaty of Waitangi itself is a finite document and that the obligation
of politicians and political leaders in this land at this time is to ensure that
Treaty claims and settlements are resolved. Hence, the philosophy behind the
fiscal envelope. From there on out, pretty much the Treaty itself is an
irrelevant document. This overlooks the fact that it is a set of agreements as
to how we relate with the other treaty partner in a bi cultural relationship.
Legislation such as a private members bill prepared by members of the ACT party
and Mr Quigley and even the constitutional reform bill which was prescribed by
Mike Moore prior to leaving for the World Trade Organisation should be of
concern to us, because it shows that across the political spectrum there is a
perception that the treaty is indeed a finite document simply being kept alive
as long as claims are waiting to be resolved.

We need
only look at places like East Timor and the collective political rejection of
the treatment of the people there and this government’s emphatic support for
their rights as a people to have democratic sovereignty over the ways that they
do things in their land. But it rather begs a question. I would have thought
that our governments, so willing to embrace a principle offshore have
steadfastly over the last 159 years so resistant to the rights of us here in
this country, the indigenous people.

We have
been treated and deceived. The treaty’s explicit guarantees have never been
upheld. We need to make sure that Maori do not get sidetracked down byways and
creeks in debates and discussion with one another that are so prescriptive in
terms of how we relate to one another that we miss a fundamental debate. This is
the debate about how we relate to the other treaty partner, and how they uphold
the guarantees that are contained within the Treaty of Waitangi. So when we talk
about words that are almost becoming cliché nowadays such as constitutional
reform, I promise you you won’t find a Maori politician this election season
that isn’t committed to constitutional reform. Accountability. That’s an
important word but another cliché that begs the question what do these things
actually mean?The juries out on
that of course. Our people have many views, and that’s okay, but ultimately we
are going to have to come with some urgency to some conclusion, in my view

First
of all in terms of constitutional change we need structural change, I have been
reading back through the archives of the old Department of Maori Affairs and the
old Department of Maori and Island Affairs and it is quite amusing to look at a
lot of the philosophies that sat behind that department. Driven by the Crown
decade after decade. One of my daughters who is at university, made the remark
that it is rather ironic that you can read in the archives the assimilation
policy and the expression of difficulty in getting some of the Maoris in some
rural areas to give up their language. In 1962 the Hunn Report Maori language
was the Maori language was an impediment to their advancement and education. Now
Maori students in 1999 have to pay the Crown for the privilege of being able to
re-learn their own language. It does seem to be ironic. So we need structural
change and in our view that structural change will have to involve genuine power
sharing and it has to occur in a range of different ways.

From
where I sit in parliament, there are some quick things that we could do with a
political will. Rather than having a ministry called the Ministry of Maori
Development charged with a monitoring function that largely by statute requires
them to monitor what’s not happening why cant we have restructuring in a way
that sees a Ministry of Maori Development charged with the auditors of that
which is rightly ours, not in terms of treaty settlements going to trust boards,
but actual vote coming from the Crown purportedly to Ministries for the benefit
of Maori but over whelmingly failing to reach those people it is meant to be
servicing.Why can’t we have
Maori as full participants in the policy formulation that affects the way that
we are governed and our lives? At the moment the vast majority of our people are
forced into a reactive mode (and can I add actually nowadays particularly since
about 1984 in the age of the free market large numbers of pakehas as well)
forced into a position of being solely reactive to the policies that are set
down by any given government in any given year. In no small part that is a
direct result of the internationalisation of capital in the market place where
organisations like the OECD and the WTO seem to have more governance over our
affairs than our own so called government.

The
other parameter we need to look at is the legislative framework. In this country
there has never ever been a bi cultural commitment to the development of a
legislative framework.It has been
imposed upon Maori rather than developed alongside and with the mandate from our
people. I want to give you a few examples. Even where you see legislation being
introduced purportedly for the benefit of our people and specifically targeted
at our empowerment I am speaking from my own perspective. Take for example the
TRONT [Te Runanga o Ngai Tahu] legislation that provided a so called legal
personality. What is happening in the 1990s when we see legislation that
empowers what is essentially a corporate structure to represent me as an
individual Maori from a particular iwi and I quote from the legislation “ for
all purposes”. How can any corporate structure represent me and my descendants
for all purposes? If the Crown wishes to convince me that is because I belong to
a particular iwi I know that in pre European days and indeed prior to the
signing of the Treaty, no iwi or hapu would presume to have vested in a small
group of individuals the absolute representation of others for all purposes. So
the questions is begged, how can that be an advancement? Again if you take the
Te Aho Matua Bill which was purportedly to enshrine that very noble philosophy
of our people in a Maori education initiative. Why is it, in that legislation
passed by parliament months ago, do we have a requirement that the Minister
shall appoint the kaitiaki. Why do we need Ministers of the Crown determining
who best represents us as a people in this day and age when they pay lip service
to empowerment for Maori. The truth of the matter is, and Moana Jackson far more
eloquent than me that it is almost impossible for Maori to win under a majority
vote system, and nobody knows that better than me. I’ve clocked up 17 years
trying and I’m not sure that I’m altogether winning, so we need to demand in
the constitutional rearrangements a clear cultural understanding that we do not
want to participate on that basis because equal is not necessarily fair and it
is equity we seek to pursue.

So
a policeman a judge or a jury? Well we need a policeman all right, we need to
police the vote because there is an old saying “it don’t mean a thing if it
aint got that zing” we have set up as Maori constitutionally. Over many years
some noble institutions, Maori Congress is but one example, but the truth of the
matter is that they have become paper tigers because the resources they should
have had in order to deliver on the governance haven’t flowed from those who
govern us. Unless they do pretty well, its not going to seem real to most
people, so a policeman to police the vote. Why not TPK? Make them the Maori
Treasury. Let us flip the argument and make sure that resources are clawed back
and TPK can determine how they were best applied by Maori because we have had
150 years of other people working out how best to deliver for us, and if you
read the Closing the Gaps report is has been an overwhelming and spectacular
failure.

A
judge, well who would be a Maori judge is this country nowadays if you are
guilty merely by having an iwi. You will be persecuted to then inth. We do need
to be judges and the way that we judge is through ensuring that the legislation
that is brought down by the Crown isn’t developed without Maori being full
participants in the process, I’m not talking about consultation here I am
specifically talking about full participance in the development of the
prescription and the philosophy and the intentions that sit behind any given
legislation because the legislation from what I’ve seen in six years in
parliament is as paternalistic now as it ever was before.

A
jury, yes most definitely and who is the best jury of what occurs for Maori and
the answer is us, our people. We know all the negative statistics they are
quoted often by people like John Banks and Richard Prebble and others in
parliament. What are the solutions? We need a genuine commitment to power
sharing but as I heard the other day from Moana in a quote “nobody with power
actually gives it up willingly”. So the bottom line for Maori people in our
view is that these cliches about our absolute obligation post-treaty settlement
to move out of grievance mode is a must, is actually a myth. The truth of the
matter is (and the people of East Timor have confirmed in the face of all the
might of the Indonesian army) that we must go on demanding it is a hallmark of a
decent society that one might have the right to demand and we must go on
demanding simply because power is never shared or given up without such demands.

In
response to a question from the audience, I believe as the Bishop said
yesterday, there is authority we Maori always had indigenous governance. The
problem is that we have had another form of governance super imposed on it. For
all the will in the world it is not working as we know, and yet we should try to
go back and find it. We had a talk here this morning about whanaungatanga I
found that very powerful that the whole strength of our tribal beings is in that
whanau corporate body, it could be a source of power that we know nothing about.

What Do We Need – Policeman, Judge or Jury

Nanaia Mahuta, Labour Member of Parliament

Tena
tatou katoa. Tuatahi …………………….

As we have
only got five minutes I will get right into it, but when I did read the question
I guess there were a number of assumptions which underlined some hesitancy in a
way to speak to this particular topic. The question was posed for us to discuss
debate and that question was “Where Indigenous Governances Fails To Be
Accountable Who Should Intervene and How To Protect The Interests of All
Parties” – What intervention mechanisms are appropriate- I thought to myself
there are a number of assumptions beingmade
there that I wasn’t comfortable with so I will get it all out on the table
first. So you can ask me at question time anything which I might not have
covered.

Firstly
there is an assumption that we cannot do it for ourselves. I believe that
although we are going through a difficult time. The whole argument and debate
around governance structures, accountability, transparency is very new in some
sense. Georgina has already made reference to the trust boards act and I know
within my own area, one of the major contentions or problems that people had
about that was that there was no responsibility for our trust board members to
report back to the people they only had to report to the Minister. We had a
major concern about that and now that we are moving into new types of governance
structures to do things for ourselves, there are difficulties in trying to get
that up and running. But they are necessary I do believe that iwi development,
tribal development, Maori development is the way to go and the issue of
governance is quite far reaching.

So
quickly this is what am I going to speak about today, there are three major
thrust that I want to make. Firstly the question of development, where are we
at? Where are we going? Where do we want to be?Secondly to discuss some of the issues of governance and some of the
problems at a national level and also at a local level, and then some of the
challenges ahead for us. Thirdly I think the other major question for all of us
here (aspiring politicians and current politicians alike) is what will be the
interface between the State and Maori tribal organisations in moving down the
development path. I think that maybe that is probably the role I’m going to
try and get involved with to try and do something at a political level.

So
what are the challenges for development. We cannot ignore that we want a multi
faceted approach to development Maori as a people whether we are from a tribe in
the South Island, a tribe in the North Island a tribe on the west coast or one
on the east coast, we are all different and what has led to some of those
differences in our approach to development are some of the historical precedents
that we have experienced.Critical
reference points define who we are and where we have come from, cannot be
overlooked when we are trying to set a path for the way ahead.

Social
dynamics include, how we have tried to keep our people together and a sense of
social responsibility as a collective. At various points in history that has
been difficult, at various points in history that has been an easy thing to
achieve.

Some
of the cultural precepts which really define who we are and what makes us tick
as a person are what makes us Maori, what makes us fiercely Ngati Porou, Tainui
Ngaitahu whatever. Then look at political mobilisation, how we, have and how we
can harness all of those things to move and drive our people forward. In each
rohe it has been different and all of you here are a testimony to that.

Economic
development, how have we participated or how have we not been able to
participate in doing things for ourselves. Then the greenie in me falls back on
some of the ecological principles of development. At some point in looking ahead
to be able to say “how can we develop as a people, hold onto our history, our
culture the things which define us, and still provide something for the future
generations so that they can continue to develop”. I think at the moment we
are locked into polarised debates: whether they be between the Crown and Maori
tribes, or between pan Maori and tangata whenua or Taura. I think some of that
has created a number of interesting dimensions to the whole development debate.
But how has that helped us understand the governance debate? We all need to look
at how to strengthen governance structures at all levels we are involved in
development.

Some
people talk about mana motuhake. Some others talk about tino rangatiratanga or
self determination and self management or co management. Underpinning all this
we’ve all seen a need to do something for ourselves. There is a need to have a
wider debate about governance and how we are going to take our people forward.
Then there is a need to know and explain what we are we talking about when we
debate development and governance, because for some of us it is mana motuhake
for others it may be self determination. Who knows?

A
Constitutional development has to take place at national level and I make no
bones about that. The constitutional debate between the Crown and Maori is not
sufficiently sophisticated to tackle some of the challenges that are before us.
We are embracing globalisation at a rate which is quite rapid for such a small
country as ours. Yet the constitutional debate is still very young, I’m not
sure what is going to drive that. Will it be Maori themselves, or will it come
from parliament or is there going to be a mass uprising with the whole country
saying lets go to a republic or what? But true change in this country if we are
going to embrace development aspirations of Maori as a group then the rest of
the country have to put the constitutional debate right on the agenda. But all
of this is shaping our national identity, who we are as a country, how do we
reflect that in the international community. Also Repulicanism gives us a
greater sense of autonomy as a nation within our sphere of influence. We are not
going to be big players like the United States we are not going to be big
economic players like some countries in Asia but how can we assert our influence
in the Pacific so that we can influence without dominance and make that a major
strategic advantage for this country. We can translate that to Maori, because I
believe more and more the irony of APEC. What did not happen or what people did
identify there was when there will be an opportunity for indigenous peoples to
come together and trade at that level purely on the basis that we are all
indigenous peoples. That is a development potential for us.

In
discussing the governance structures I can comment from parliament what happens
there but sometimes I don’t think that is a very good model to use. So I will
make some broad brush stokes and pick up on some of the issues at question time.

Governance
structures must ensure a level of representation that accommodates all the
diverse views held in our country. At a tribal level to ensure that the
diversity of views that are incorporated in your tribal governance structures.
Governance structures must be responsive to the realities of society, I think
that MMP as a political system has actually ensured that. Transparency and
accountability are always an ongoing, argument “how do we improve
transparencies and accountabilities in the way we spend money and the way we do
things. I guess in time, a good governance structure would outline a clear
charter of rights and responsibilities of individuals in our society. Some times
I think some of the difficulties about governance or development and the way we
are going is that as Maori we do have a rather boom/bust type of approach to
development. We live in a feast or a famine. That has been my general comments
on economic development. We have this pilot programme mentality. Sometimes it
grates. Why do we always have to go from pilot programme to pilot programme to
pilot programme? What I’ve seen over the last three years are that the biggest
hindrances to Maori development are Maori ourselves. To some extent we keep
looking over the fence to see what the other fellow is doing .If he is doing
something we don’t like, we shoot him down quickly. I have just come from the
auahi kore hui this morning where a good analogy was used. It was like all the
crayfish are in the bucket one of them climbs to the top when all other crayfish
come to pull it down.I don’t
know whether its an inherent part of our psyche as an indigenous people, or what
but it certainly hinders progress for us as a people. We need to get over that

Generally
the approach that government, (any government) has taken to Maori development ha
been restricting many of the things we want to do are multi faceted and a lot of
past governments have said no this is too hard, you want to do too much. They
are not ready to go down that track. That is a challenge for us as politicians
to try and change that kind of bureaucratic mentality.

The
last question for me is what role should the state play in our development
aspirations in getting an active interface between Maori and the Crown, between
tribal development and the Crown. We can only look so far at what has happened
recently.Maori have been heavily
involved in service provision of state services. But we have to ask ourselves,
do we want to be merely service providers for the rest of our lives. I think
not. We really want to get into economic development planning so we can
determine for ourselves the different things we want to do. Remember he who pays
the piper calls the tune. That has always been a problem for Maori providers
always contesting funding

I
think the state can help to develop competencies in iwi organisations and Maori
organisations, competencies where we have an active role at an environmental
level. Monitoring participation in the management of our environmental resources
and our conservation resources. Telecommunications, we can be a major player
there. That is a big area we could break into. We can be involved in research
and development. We must be some of the most researched people out, yet a lot of
that research doesn’t actually provide or lead policy to result in the
outcomes that we seek as a people, that’s a problem. And then, how to get a
better distribution of resources. Again that is a challenge for all politicians.
That is what were there to do. We already know mainstreaming isn’t working, so
what’s the alternative? How can we redirect those resources to ensure they are
getting into our communities and addressing areas of need that is the challenge.
Also how can the state play a role in strengthening tribal infrastructure? Some
iwi have opted to legislate their organisational structures, some have chosen to
set up charitable trusts. There is an option either way, according to each
different iwi or organisation. Its up to you,. But the over- riding question is
how the state can help. If your particular governance gets legislative authority
at some point, that in itself says we have no role to play in the internal
governance of that particular iwi organisation, I think that is something quite
innovative in the whole area of indigenous development. Where should the major
shift occur?It goes back to my
earlier comment about us having a multifaceted approach to development

If
we make the shift (and I use the analogy of being a service provider to a
funder), if we can achieve that shift, we could be in a position to create
greater synergies between our social, economic, political and ecological
objectives as Maori overall, or as individual iwi.

What
Do We Need – Policeman, Judge Or Jury?

Atawhai
Tibble, Mauri Pacific

A
kaumatua, a ……..

The question we are being
asked today is What Do We Need – Policeman, Judge or Jury. My response is
“all of the above”. The key issue, as I see it, is accountability to our
people, accountability of those who have power over us for the things that they
do to our people. May I say as a universal precept that I fully support
democracy as government of the people for the people by the people. Mo te iwi na
te iwi, ma te iwi ko te tautoko a iwi, te korero, essentially I think that is
what we are really talking about today. With regards to any governance structure
“what is it really about?” It is essentially a body who has been authorised
by a mandate from the people to take care of the people. To date if we think
about how various organisations have retained or taken hold of some power to
look after the people at least in recent times it has been with this
guardianship or trusteeship in mind.

The real
issue for all Maori organisations is how do we make them accountable and how are
they held to account for the services and resources that they do hold for the
benefit of the people. I was in a certain part of our country recently talking
with people, who said to me “E tama one of the issues here is that there are
some people who don’t know the difference between money and mana. I say this
with all sincerity because there is a definite perception among the people that
there is a difference and that there are some people who need to understand what
our leaders are doing with this. How is this benefiting all the people. I say
this with great respect to all people in positions of power, essentially that is
what we are here to talk about today, accountability. So when we think about
what do we call the Pakeha system the Tauiwi system you have an executive, an
elected executive, the judiciary the people who look at the law who have seen
the framework within which this governing body is meant to operate and you have
the policeman as some kind of enforcement arm. To date I am unaware whether
there or not there are in trustees there are mechanisms by which people if they
have complaints and they are not happy with the way the particular board or
authority is acting if they have a mechanism by which they can complain and have
their complaint heard and held and objectively assessed and analysed and some
kind of objective judgement made because it would appear to me to be a key
question that people are asking. I admit there are large numbers of our people
with regards to iwi politics and hapu politics who don’t really know what is
going on and there is a responsibility that those people have to keep up to date
with what is going on. The key issue really for people who don’t know what’s
going on or who have some idea of what’s going on is where do they have a say.
If for example they do not agree with a decision that has been made by a
particular board or organisation is their only recourse to vote in a new person
next time, is that all that they can do because if that is so then all we really
have is an organisation that is judged every three years, at the end of the
three years, we have no ability like we as Maori in terms of the Crown to go to
a tribunal or a court to complain and say this is not right.In the event under an Article II situation where there is an iwi
organisation and it has made a particular decision and there are iwi members of
that organisation who have a complaint who do they complain to would they
complain to a court a pakeha system and say we are not happy with the decisions
made we would like them over turned because in that case we would be turning to
a pakeha system or is there an opportunity for us as Maori to develop our own
systems and to think ahead and plan ahead.

What Do We Need – Policeman, Judge Or Jury?

Hon. Georgina Te Heuheu, Minister for Courts

Kia ora tatou te
whanau kia ora tatou katoa

I
think Pauline [Kingi] must be chairing the wrong panel because if she wants a
logical and reasonable discussion she’s got politicians up here. We can always
hope.

Thank
you very much for the opportunity to say a few words.

When
asking the question What do we need – policeman, judge or jury I say that
there are some times in the life and times of our people on the ground when they
feel they need a gun but that’s not what we are looking at today. What that
does however demonstrate is that there are some points in our activities
especially back in on the ground both in our tribal and urban settings where the
expectations between what the people think ought to be happening and some of our
structures and the actual delivery is so wide that really it is not surprising
that often times we hear of huge levels of dissatisfaction with the way some of
our organisations are governed.

When
we say indigenous governance fails to be accountable the reality is that we
don’t have any true indigenous models in operation in any substantial way at
the moment. If you think about where we actually have assets be they significant
assets or even modest assets then the big push there is always to have some
legal recognition of the organisation administering them because sometimes
issues of liability and risks are seen to be best catered for by a model which
is basically Pakeha or statute created. If we are talking indigenous governance
as such are we talking about whanau hapu and iwi that would seem to me to be
indigenous otherwise we are talking about models of governance that are created
by statute and in that regard if they are created by statute then statutes
actually set out the accountability processes. So if you take our trust boards
for instance then the accountability mechanisms for trust boards as we all know
are in the trust boards legislation primarily and a lot of our iwi and hapu, our
families chose to set up charitable trusts chose to set up incorporated
societies again those models of governance that are Western but which never the
less set out accountability mechanisms. Having not been at discussions earlier I
hope you will bear with me on the basis that indigenous governance per se as far
as I can tell doesn’t exist in any meaningful way but governance which
exercise responsibility over what we might term indigenous assets or Maori
assets that is everywhere to be found and that governance is backed up by its
own legislation. That doesn’t mean to say of course that its any more
accountable than any other form of governance because of course what the people
are looking for is accountability back to them and those mechanisms set up
accountability more especially trust boards back to government and in terms that
they are statute created they have reporting requirements and audit requirements
and so again you get the arm of government intruding because that’s how it
will look to a lot of our people intruding into you business you business
operations and your management operations. If we were however looking for
something that more resembles or so we think resembled the way traditionally we
might have exercised governance we must then be looking at something that gives
some sort of legal recognition to whanau hapu and iwi. Its at that point that
some of us get worried because we say they have a legal framework, a Maori legal
framework of their own and thank you very much we don’t want a government
created framework giving recognition to whanua hapu and iwi so I think we have a
little bit of a dilemma but I'm sure that some of the papers being presented
yesterday especially the dilemmas may be less substantial than maybe I’m
making out.

If
I can just refer briefly to a paper that was delivered yesterday it seems to me
that what Donna Hall was suggesting was that certainly kept the reporting
requirements in a pakeha legal sense but in the way the thing was structured in
terms of accountability back to people that it was possible to integrate into a
model something which actually gave the people the opportunity to participate
and the opportunity to be involved in decision making because that’s what
seems to be missing now. If I take only our own at home Tumu’s here the trust
board in our area is seen to be the organisation that has long been recognised
as exercising some sort of governance for our people but in that sense it has
been accountable back to the Minister of Mori Affairs because the Minster Tau
Henare has been working to try and break down some of that accountability back
to government and find ways to actually make some accountability flow to the
people but currently as with all trust boards getting some accountability and
this is not said in a negative way getting actual accountability back to the
people has been the big challenge not only for us but I am sure for others
elsewhere.

Our
assets by and large are managed and governed by way of pakeha or statute created
organisations If that is what we are talking about then there are some
accountability measures in there that are set in statute the challenge is to
find ways of having an accountability back to the people and still be
responsible for those reporting requirements that are the basis of pakeha
organisations as well. If we are thinking about governance in terms of our own
traditional structures whanau hapu and iwi then I think that’s an exciting
thought it’s a challenging one and I think we have to get over the barrier or
certainly a blockage in my mind as to whether or not we want law going anywhere
near those structure.

Thank
you for the opportunity to say something I am sure that whatever comes out of
this hui will enable us to advance our responsibilities and our governance
beyond where we are today and I wish you all the best for the remainder of the
hui.